Hathaway v. Lynn

• Decision Date: 03 December 1889
• Citation: 43 N.W. 956,75 Wis. 186
• Parties: HATHAWAY v. LYNN.
• Court: Wisconsin Supreme Court

75 Wis. 186

43 N.W. 956

HATHAWAY

v.LYNN.

Supreme Court of Wisconsin.

Dec. 3, 1889.

Appeal from circuit court, Wood county.

In June, 1887, the plaintiff was, and still is, the proprietor of a hotel in the city of Grand Rapids, known as the “Witter House,” and until that time ran an omnibus for the carriage of passengers between his hotel, the residences in the city of Grand Rapids and Centralia, and two railroad depots, one of which is situated in each of said cities. Such cities are separated by the Wisconsin river, and were, at that time, connected by a free bridge across the river. At the same time the defendant was, and still is, the proprietor of another omnibus line, and engaged in the same business in those cities. On June 29, 1887, the plaintiff sold his omnibus, team, and outfit to the defendant, who paid the agreed consideration therefor. At the time of such sale the parties entered into an agreement in writing, signed by them, which is as follows: “Memorandum of agreement made and concluded this 29th day of June, 1887, by and between L. Hathaway of the one part, and M. H. Lynn of the other part, witnesseth: The said L. Hathaway having this day sold out his bus line to said M. H. Lynn, now, therefore, in consideration of the premises and of the agreement hereinafter contained, the said M. H. Lynn hereby agrees and binds himself regularly and in proper manner hereafter to run a separate bus between the Witter House and all passenger trains arriving at the Grand Rapids and Centralia depots, for the separate and special accommodation of the traveling public desiring to stop at the Witter House. In other words, to convey Witter House customers and Centralia House patrons in separate busses; unusual and temporary accidents excepted and excusing. Also to carry a runner for the Witter House free of charge to and from all such trains. In consideration of the premises, and of the foregoing agreement, the said L. Hathaway hereby agrees and binds himself that, so long as the said M. H. Lynn faithfully carries out the foregoing agreement, he will not put on, nor encourage any one to put on, a bus line in said cities. In case of the violation or disregard of the terms of this agreement, the damages recoverable by the other are hereby fixed and adjusted at the sum of two hundred dollars, to be paid on demand.”

This action was brought to recover $200, as liquidated damages for alleged breaches by defendant of such agreement. The breaches assigned are (1) that several times between December, 1887, and April, 1888, the defendant failed to run a separate omnibus to and from certain trains; and (2) that since April 11, 1888, the defendant has wholly failed to perform his said agreement. The defendant in his answer alleges full performance of his contract to April 11, 1888, and that he was excused from such performance thereafter by the destruction of the bridge between the two cities, which had not been rebuilt. He further alleges that after that date, and before the action was commenced, the plaintiff released him from the obligation further to perform such contract. The parties were the only witnesses on the trial whose testimony is of any importance. The only material conflict in their testimony relates to the special breaches of the agreement charged in the complaint to have occurred between December, 1887, and April, 1888, and to the release of defendant by plaintiff, as alleged in the answer, from the performance of the agreement. It appears that the bridge was carried away by an ice jam on April 11, 1888, and the river between the two cities could not be crossed with teams until about the middle of May, when a ferry-boat was put in operation, upon which teams and vehicles could be transported across the river. Tolls were charged therefor. Further reference to the testimony will be found in the opinion. The jury returned a verdict for...